IN THE UNITED STATES DISTRICT COURT

 FOR THE SOUTHERN DISTRICT OF OHIO

 EASTERN DIVISION

Gregory Gimbrone, :

 Plaintiff, : Case No. 2:12-cv-251

 v. : JUDGE GREGORY L. FROST

 Magistrate Judge Kemp

Dr. Krisher, et al., :

 Defendants. :

 REPORT AND RECOMMENDATION

 Plaintiff, Gregory Gimbrone, a prisoner who resides at the

Chillicothe Correctional Institution, filed this case under 42

U.S.C. §1983 asserting a claim for denial of medical case under

the Eighth and Fourteenth Amendments to the United States

Constitution. Along with his complaint, he moved for preliminary

injunctive relief in the form of an order which, if issued, would

require his institution to provide him a cane. 

In an order filed on May 25, 2012, the Court granted Mr.

Gimbrone leave to file an amended complaint (which he has now

done) and also requested additional briefing on the issues raised

by his motion for preliminary injunctive relief, which had been

the subject of some amount of briefing before that order was

issued. Defendants filed a supplemental memorandum in opposition

on June 15, 2012, and Mr. Gimbrone filed a supplemental reply

brief on June 25, 2012. Both parties also submitted additional

exhibits. For the reasons set forth in this Report and

Recommendation, it will be recommended that the motion for

preliminary injunctive relief be denied.

I. Introduction

Mr. Gimbrone has pleaded the following facts in his amended 

complaint. In 1974, his right foot was partially amputated by a

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railroad car. His foot was reattached at the Kettering Medical

Center, and he was able to re-learn to walk, using a cane. 

Approximately 20 years later, he was awarded Social Security

disability benefits due to chronic physical and psychological

problems. Five years after that, he was committed to the custody

of the Ohio Department of Rehabilitation and Correction to begin

serving a prison term of eight to twenty-five years. At the time

he began serving that sentence, he was using a cane, and he did

so more or less continuously, with the approval of various prison

doctors, until 2010.

On April 20, 2010, as a result of an examination conducted

by a Dr. Williams (who is not a defendant in this case), Mr.

Gimbrone’s cane was taken from him. He grieved the loss of his

cane, but without success. At some point, Dr. Krisher replaced

Dr. Williams as the institutional physician, and Mr. Gimbrone

went to see him on September 22, 2011. According to Mr.

Gimbrone, he told Dr. Krisher that he was suffering from a great

deal of pain, and asked for his cane back. However, Dr. Krisher

refused to prescribe a cane, and, if the complaint is to be

believed, also told Mr. Gimbrone that “he did not care about [Mr.

Gimbrone’s] disability or his pain” and that he would not provide

medical care to Mr. Gimbrone for any conditions relating to his

foot. Mr. Gimbrone grieved that decision also, again

unsuccessfully, and also grieved Dr. Krisher’s refusal to order a

cane after Dr. Krisher had reviewed medical records from the

Kettering Medical Center. Mr. Gimbrone continues to suffer pain

and swelling in his reattached foot, and he has difficulty

walking due to those symptoms.

II. The Basic Facts

The complaint in this case (which is not verified, meaning

that Mr. Gimbrone has not actually sworn to the truthfulness of

the facts alleged) does not stand unrebutted, nor does it stand

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unsupported. As part of their supplemental response to Mr.

Gimbrone’s motion for preliminary injunctive relief (Doc. 20),

defendants submitted two affidavits, one from Dr. Krisher, and

one from Beth Higginbotham, the acting health care administrator

and the quality improvement coordinator at the Chillicothe

Correctional Institution. Ms. Higginbotham is also named in the

amended complaint as a defendant. Mr. Gimbrone has submitted his

own affidavit as an attachment to his reply memorandum (Doc. 22). 

In order to highlight where the parties’ versions of the facts

conflict, the Court will summarize each of these affidavits.

Taken together, Dr. Krisher’s and Ms. Higginbotham’s

affidavits say the following. First, they confirm that Dr.

Krisher met with Mr. Gimbrone on September 22, 2011. That

appointment came about because, nine days earlier, Mr. Gimbrone

had complained that he was suffering from psoriasis on his right

foot and that he wanted to see a doctor about getting a cane. 

Mr. Gimbrone, during the appointment, was able to walk

without a cane, demonstrating only a slight limp. Dr. Krisher

examined Mr. Gimbrone’s foot and noted multiple scars on the

foot, but observed no lesions, tenderness, swelling or warmth. 

Dr. Krisher was aware that prior institutional records stated

that Mr. Gimbrone was able to walk with a “strong and steady

gait” without a cane. In fact, such an entry does appear in a

March 17, 2010 note in Mr. Gimbrone’s medical record. Based on

the results of his examination and his review of the file, Dr.

Krisher determined that Mr. Gimbrone did not need a cane, and he

refused to order it.

Dr. Krisher did ask for medical records from outside sources

in order to evaluate Mr. Gimbrone’s need for a cane. There was

some delay in getting these records because Mr. Gimbrone would

not initially sign a release for them. The institution received

records from Kettering Medical Center on December 14, 2011. 

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Those records show that Mr. Gimbrone was treated with a right

lumbar sympathetic block in 1997 due to his complaints of pain in

his right foot and ankle. They say nothing about his use of a

cane. Ms. Higginbotham met with Mr. Gimbrone shortly after she

received the records, and confirmed what Dr. Krisher had told him

- that he did not meet the institution’s criteria for being

prescribed a cane. Both affidavits, and Mr. Gimbrone’s medical

chart, show that he did not ask for any treatment for any footrelated problems after that date, and the affidavits also say

that he did not purchase any over-the-counter pain medication,

such as Tylenol or ibuprofen, from the institutional commissary

since November, 2011.

Mr. Gimbrone’s affidavit recites roughly the same chronology

and he does not argue with many of the statements made by Dr.

Krisher and Ms. Higginbotham, although, with respect to his

failure to buy any over-the-counter pain medications, he asserts

that he is allergic to ibuprofen and that aspirin has no effect

on the type of pain he is suffering. He characterizes what Dr.

Krisher told him on September 22, 2011, in a slightly different

way, essentially affirming the allegation in the complaint that

Dr. Krisher told him he would not get any treatment at all for

his foot. Finally, he swears that he can only walk for 30

minutes at a time before being forced to elevate his foot and

treat it with ice, and that, among other things, this is causing

him to miss at least one trip to the chow hall every day. He

also attached a copy of Ohio Administrative Code §5120-9-60 to

his affidavit, pointing out that it defines a “medically

necessary” treatment as one which is needed to “[p]reserve life

or limb” or “alleviate significant pain or discomfort.”

 III. Analysis

As noted in the May 25, 2012 order, the Court is required to

weigh four factors in determining whether a party is entitled to

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a preliminary injunction under Fed. R. Civ. P. 65(a). Those

factors are: (1) the likelihood that the party seeking the

injunction will succeed on the merits of the claim; (2) the

extent to which the party seeking the injunction will be injured

unless relief is granted, focusing particularly on the

possibility of irreparable injury; (3) whether the injunction, if

issued, will cause substantial harm to others; and (4) whether

issuance of the injunction is in the public interest. See

Washington v. Reno, 35 F.3d 1093 (6th Cir. 1994). No one

factor is dispositive. Rather, these four factors must be

balanced in determining whether preliminary injunctive relief

should issue. In re Delorean Motor Co., 755 F.2d 1223, 1229

(6th Cir. 1985). 

The third and fourth factors are not independently

implicated in this case. An injunction, while it might help Mr.

Gimbrone, could possibly cause some harm to others because

defendants’ policy is to limit the number of canes present in the

institution to those inmates who really need them, given that a

cane can be used as a weapon, but there is no real evidence that

such a risk would be presented by giving a cane to Mr. Gimbrone. 

And the public interest is served by vindicating constitutional

rights if, indeed, Mr. Gimbrone’s rights are being violated, but

it is not served by a court order interfering with the ability of

prison officials to make sound medical decisions if, in fact,

that is what they have done. In short, the likelihood that Mr.

Gimbrone will succeed on the merits, and the possibility that he

will suffer irreparable injury if not given a cane, are the key

factors which will determine if injunctive relief is warranted.

Here, in order for Mr. Gimbrone to demonstrate that it is

likely he will succeed on the merits of his claim, he must show

that the defendants were deliberately indifferent to his serious

medical needs. See generally Wilson v. Seiter, 501 U.S. 294, 297

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(1991); see also Blackmore v. Kalamazoo County, 390 F.3d 890, 895

(6th Cir. 2004). At this point in the case, there is a factual

dispute on both elements; defendants claim that there is no

evidence of a serious condition affecting Mr. Gimbrone’s right

foot - no infection, no rash, and no physical problem that

prevents him from walking effectively (although with a slight

limp) without a cane - and no evidence that they deliberately

refused to provide him with necessary treatment (their view being

that a cane is not necessary for Mr. Gimbrone’s health or wellbeing). On the other hand, Mr. Gimbrone claims that his pain and

his inability to walk even to the chow hall three times a day is

a serious medical need, and that the defendants did not just

disagree with his request for a cane, but flatly refused to

provide him with any medical treatment for his foot at all. 

 It is the movant’s burden to prove that this and other

factors weigh in favor of issuing preliminary injunctive relief. 

Granny Goose Foods v. Brotherhood of Teamsters, 415 U.S. 423

(1974). When there is a conflict in the evidence, it could be

said that the movant has simply failed to carry the burden of

showing a likelihood of success on the merits because the

ultimate trier of fact could believe either side of the story. 

However, the Court of Appeals has cautioned that when the key

facts relating to a preliminary injunction conflict, sometimes an

evidentiary hearing may be needed. See, e.g., Chrysler Corp. v.

Franklin Mint Corp., 32 F.3d 569 (6th Cir. 1994)(unreported); see

also McDonald’s Corp. v. Robertson, 147 F.3d 1301, 1312 (11th

Cir. 1998)(“where facts are bitterly contested and credibility

determinations must be made to decide whether injunctive relief

should issue, an evidentiary hearing must be held”). 

Robertson also noted, however, that if the basic facts are

undisputed and it is the inferences to be drawn from them that

are at issue, the Court has discretion not to order a hearing. 

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The illustration it provided of that principle was a case where

an inmate and a prison were in conflict over medical care, and

the documentary evidence favored the prison’s position. In that

situation, “the district court did not err in declining to hold

an evidentiary hearing.” Id. at 1313. To some extent, taking

into account the totality of the documentary evidence, the Court

may also weigh or “evaluat[e] the sworn statements in light of

the overall record.” Phillips v. Crown Central Petroleum Co.,

376 F.Supp. 1250, 1254 (D. Md. 1973).

Applying these principles to this case, the Court concludes

that despite the conflict in the affidavits presented, an

evidentiary hearing is not needed. It may well be that Mr.

Gimbrone has a serious medical need, and that walking without a

cane is causing him foot pain and swelling, but he has not asked

for any treatment for those conditions for almost a year. The

Court can make a determination that if someone is in constant

pain, and a cane is not the only way to relieve it, the medical

records would likely show some request for treatment even if

prior efforts to get a cane were rebuffed. Further, the medical

records show that when Mr. Gimbrone did ask for treatment for

psoriasis on his foot, he received a medical appointment in less

than two weeks. It may be that he cannot take over-the-counter

painkillers or that they are ineffective, but that is all the

more reason why, if he is in pain due to the lack of cane and is

convinced he will not be given one, he would likely have sought

some type of medical relief for the symptoms he is experiencing. 

His claim that Dr. Krisher said to him, in effect, that he would

neither prescribe a cane nor provide Mr. Gimbrone with any other

medical treatment for problems with his foot, no matter how

severe, lacks credibility, and the lack of treatment for foot

symptoms (as opposed to the lack of a cane) is not the primary

subject of the grievances Mr. Gimbrone filed on this subject. 

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Overall, the Court is not persuaded that Mr. Gimbrone has

demonstrated either that it is likely he will succeed in proving

that he has a serious medical need regarding his foot, or that he

will suffer an irreparable injury if the issue of the cane is not

resolved until this case is decided on its merits. 

Even if the Court assumes, at this point, that Mr. Gimbrone

has a fair chance of success with respect to his claim of a

serious medical need, he also must demonstrate a likelihood of

success on the issue of deliberate indifference. Many of the

same considerations which lead the Court to question his chances

of success on the issue of a serious medical need also undermine

his deliberate indifference claim. Again, the medical records

show that he was seen when he complained about psoriasis; that

Dr. Krisher is not the only physician who thought that Mr.

Gimbrone did not need a cane; that there are entries in Mr.

Gimbrone’s medical chart which support Dr. Krisher’s conclusions;

that prison officials did follow up on Mr. Gimbrone’s complaints

by obtaining and reviewing records from the Kettering Medical

Center; and that those records make no mention of the need for a

cane. This evidence is, at this point in the case, stronger than

Mr. Gimbrone’s unsupported allegation that Dr. Krisher absolutely

refused to treat him for any foot issues, including the pain and

swelling he now claims to be experiencing. Even if Dr. Krisher

misread the records or negligently examined Mr. Gimbrone’s foot,

that would not be a constitutional violation. See, e.g.,

Comstock v. McCrary, 273 F.3d 693 (6th cir. 2001). Finally,

there is little, if any, medical evidence supporting a claim of

an immediate or irreparable injury which will ensue if a cane is

not immediately prescribed. 

It is important to stress that, at this stage of the case,

the Court is not rendering a decision on the ultimate merits of

Mr. Gimbrone’s claims. In fact, “it is generally inappropriate

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for a federal court at the preliminary-injunction stage to give a

final judgment on the merits.” University of Texas v. Camenisch,

451 U.S. 390, 395 (1981). Rather, the Court engages in a

balancing of the four factors to determine if they favor the

issuance of an order either maintaining the status quo pending a

decision on the merits, or, as here, actually altering the status

quo because of the need to prevent an immediate and irreparable

injury in a case where the plaintiff is likely to succeed on the

merits. In the Court’s judgment, this is not such a case. 

Therefore, the motion for temporary or preliminary injunctive

relief cannot be granted.

IV. Recommended Disposition

Based on the matters discussed above, it is recommended that

Mr. Gimbrone’s motion for preliminary injunctive relief (Doc. 3)

be denied.

 V. Procedure on Objections

If any party objects to this Report and Recommendation, that

party may, within fourteen days of the date of this Report, file

and serve on all parties written objections to those specific

proposed findings or recommendations to which objection is made,

together with supporting authority for the objection(s). A judge

of this Court shall make a de novo determination of those

portions of the report or specified proposed findings or

recommendations to which objection is made. Upon proper

objections, a judge of this Court may accept, reject, or modify,

in whole or in part, the findings or recommendations made herein,

may receive further evidence or may recommit this matter to the

magistrate judge with instructions. 28 U.S.C. §636(b)(1).

 The parties are specifically advised that failure to object

to the Report and Recommendation will result in a waiver of the

right to have the district judge review the Report and

Recommendation de novo, and also operates as a waiver of the

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right to appeal the decision of the District Court adopting the

Report and Recommendation. See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir.1981).

 /s/ Terence P. Kemp 

 United States Magistrate Judge

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